Here are Dr. Chris’ Notes from our show on January 30th, 2015 about Police Brutality.
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- Police Testilying
- Pichess Motion
- Brady Disclosure
- Jencks Act
These notes were compiled from Wikipedia. Please make sure you check with all legal sources to utilize these remedies properly. This is NOT legal advice. Please do your own due diligence.
Police perjury (or testilying in United States police slang) is the act of a police officer giving false testimony. It is typically used in a criminal trial to “make the case” against a defendant who the police believe to be guilty when minor irregularities during the suspect’s arrest or search threaten to result in acquittal on a technicality. It has broader meanings. It also can be extended further to encompass substantive misstatements of fact for the purpose of convicting those whom the police believe to be guilty, or even to include statements to frame an innocent citizen. More generically, it has been said to be: “Lying under oath, especially by a police officer, to help get a conviction.”
There seems to be little doubt that the practice occurs, is not limited to any region of the country, and that “testilying” is a common name for it. A 2003 Boston Globe editorial noted:
In the early 1990s, the Mollen Commission peeled away layers of falsehood in the New York City Police Department, including false statements on warrant applications, creation of confidential informants out of whole cloth, and lies told to establish probable cause for stopping and searching vehicles. So-called “testilying,” however, is not limited to any one area or police department. The problem has become so acute that juries nationwide routinely express skepticism about law enforcement testimony, such as drugs found “in plain view“.
The LAPD is said to call the practice “joining the liars’ club.” In a 1996 article in the Los Angeles Times, “Has the Drug War Created an Officer Liars’ Club?,” Joseph D. McNamara, then chief of police of San Jose, said “Not many people took defense attorney Alan M. Dershowitz seriously when he charged that Los Angeles cops are taught to lie at the birth of their careers at the Police Academy. But as someone who spent 35 years wearing a police uniform, I’ve come to believe that hundreds of thousands of law-enforcement officers commit felony perjury every year testifying about drug arrests.” He noted that “Within the last few years, police departments in Los Angeles, Boston, New Orleans, San Francisco, Denver, New York and in other large cities have suffered scandals involving police personnel lying under oath about drug evidence.”
In California: Pitchess motion
From Wikipedia, the free encyclopedia
A Pitchess motion is a request made by the defense in a California criminal case, such as a DUI case or a resisting arrestcase, to access a law enforcement officer’s personnel information when the defendant alleges in an affidavit that the officer used excessive force or lied about the events surrounding the defendant’s arrest. The information provided will include
prior incidents of use of force,
allegations of excessive force,
citizen complaints, and
information gathered during the officer’s pre-employment background investigation.
The motion’s name comes from the case Pitchess v. Superior Court.
Context of the case
The story of Pitchess v. Superior Court is somewhat convoluted. The Los Angeles County Sheriff, Peter J. Pitchess, along with members of his administrative staff, are the case’s petitioners, and the Superior Court of Los Angeles County is therespondent, with a man named César Echeverría as the real party in interest. Sheriff Pitchess had sought a writ of mandate to compel the Superior Court to quash its subpoena duces tecum requiring that Pitchess’ office produce documents for a trial in which Mr. Echeverría was named as defendant. Mr. Echeverría was being charged at the time with four felony counts of assaulting four sheriff’s deputies, and this despite the fact that immediately following the incident he was in an intensive care unit and the officers themselves had sustained no serious injuries. His attorney, Miguel F. García wished to obtain evidence from the Sheriff’s Office regarding records of complaints by the public about the propensity of these deputies to use excessive force. The Sheriff’s Office had flatly refused to provide such documents. García had then convinced a court to issue a subpoena for them, and the Sheriff’s Office, in the form of Sheriff Pitchess, petitioned the Court of Appeals to hold a hearing to have the subpoena “quashed.” The petition was unusual in that it came directly from the county sheriff, and so the Court of Appeals readily agreed to hear the petition.:p.45
The Court found, however, that although such records could be classified as “discoverable” by Mr. García, they had to contain complaints that were “sustained” by the police department itself before they would need to be provided. In other words, the police department would have to have a record of a deputy’s propensity for or acts of abuse substantiated by the department itself.:p.45
Mr. García then petitioned the State Supreme Court to uphold the subpoena, and it did so in a 7–0 ruling (i.e., with no dissenting justices). Today, the Pitchess motion is one of the 15 or 20 most common motions filed in criminal court in the state of California.:p.47
A defendant’s right to information about alleged officer misconduct or dishonesty thus providing information for witness impeachment has since been established by statute in California in sections 1043 through 1047 of the California Evidence Code.
A Pitchess v. Superior Court motion can be made by a criminal defendant to discover complaints made against a police officer, and the investigation of those complaints, such that they are contained in the officer’s personnel records. The motions can be made in a California Superior Court under California Evidence Code 1043-1046. Notwithstanding the broad nature of the discovery that the associated court rule and statute provide, getting actual records is problematic. In California, there is a carefully prescribed procedure governing such request, and making disclosure without an order is a crime. The statutory scheme was developed, in part, because law enforcement departments had developed a practice of purging their files concerning misconduct claims made against their officers.
Compliance with Brady is a continuing obligation of prosecutors. Some prosecuting attorney offices have adopted and created specialized procedure and bureaus to meet their burden.
The term comes from the U.S. Supreme Court case, Brady v. Maryland, in which the Supreme Court ruled that suppression by the prosecution of evidence favorable to a defendant who has requested it violatesdue process.
Following Brady, the prosecutor must disclose evidence or information that would prove the innocence of the defendant or would enable the defense to more effectively impeach the credibility of government witnesses. Evidence that would serve to reduce the defendant’s sentence must also be disclosed by the prosecution.
Examples include the following.
The prosecutor must disclose an agreement not to prosecute a witness in exchange for the witness’s testimony.
The prosecutor must disclose leniency (or preferential treatment) agreements made with witnesses in exchange for testimony.
The prosecutor must disclose exculpatory evidence known only to the police. That is, the prosecutor has a duty to reach out to the police and establish regular procedures by which the police must inform him of anything that tends to prove the innocence of the defendant. However, the prosecutor is not obligated to personally review police files in search of exculpatory information when the defendant asks for it.
The prosecutor must disclose arrest photographs of the defendant when those photos do not match the victim’s description.
Some state systems have expansively defined Brady material to include many other items, including for example any documents which might reflect negatively on a witness’s credibility.
Police officers who have been dishonest are sometimes referred to as “Brady cops.”
Because of the Brady ruling, prosecutors are required to notify defendants and their attorneys whenever a law enforcement official involved in their case has a sustained record for knowingly lying in an official capacity.
Procedures for compliance
In order to ensure compliance with Brady, the United States Supreme Court repeatedly urged the “careful prosecutor” to favor disclosure over concealment. Comformity with Brady is a continuing obligation of prosecutors. Some prosecuting attorney offices have adopted and created specialized procedure and bureaus to meet their burden.
The Jencks Act
The Jencks Act, 18 U.S.C. § 3500, provides that the government (prosecutor) is required to produce a verbatim statement or report made by a government witness or prospective government witness (other than the defendant), but only after the witness has testified. Jencks material is evidence that is used in the course of a federal criminal prosecution in the United States. It usually consists of documents relied upon by government witnesses who testify at trial. The material is described as inculpatory, favoring the United States government’s prosecution of a criminal defendant.
The Jencks Act also covers other documents related to the testimony, or relied upon by government witnesses at trial. Typically, the material may consist of police notes, memoranda, reports, summaries, letters or verbatim transcripts used by government agents or employees to testify at trial.
After the government’s witness testifies, the court must, upon motion of the defendant, order the government to produce any statement of the witness in the government’s possession relating to the subject matter as to which the witness testified. The court’s denial of such a motion by a defendant is reversible error, although the court need not order the disclosure sua sponte. The usual remedy for failure of the government to produce the documents is a mistrial and dismissal of criminal charges against the defendant.